Changes to mandatory judicial retirement ages: Virginia plan now law; Oregon voters will decide in November 2016 on repeal; Massachusetts proposal rejected

Since April’s update on the subject of mandatory judicial retirement age changes there’s been several developments.

Alabama

While the state does not have a retirement age per se, it does prohibit judges from seeking election or being appointed to fill a vacancy if they are above the age of 70. Efforts to raise this to 72 were approved in the House and appeared to have Senate backing before time ran out in the session. Critics argued the constitutional amendment was specifically designed to allow 68 year old Chief Justice Roy Moore to seek one more term in office.

Louisiana

Despite voters in 2014 rejecting a constitutional amendment repealing the mandatory retirement age for most judges in the state, at least some judges will be able to avoid being forced out at 70. Under HB 350 as signed into law, justices of the peace in office as of August 15, 2006 can continue to run for re-election over the age of 70.

Massachusetts

A plan to increase the mandatory retirement age for judges in that state from 70 to 76 was rejected in committee in late April.

North Carolina

Several efforts to increase the mandatory retirement age for judges met with approval in the House but were not taken up by the Senate prior to adjournment. Those bills could come back up in the 2016 session.

Oregon

Voters will get to decide in 2016 whether or not to repeal the state’s mandatory judicial retirement age. Under SJR 4 as approved by the legislature in late June the constitutional provision allowing the legislature to set a retirement age would be stricken.

Virginia

Virginia appellate judges as of today (July 1), will see their mandatory judicial retirement age increase from 70 to 73 under a bill signed into law this spring. However, only those trial judges elected or appointed after July 1, 2015 would get the increase to 73; all other trial judges remain at the mandatory retirement age of 70. Virginia Governor Terry McAuliffe had asked the legislature to amend the bill (HB 1984) to apply the increase to all judges, and the state’s Senate was willing to do so, however the House insisted on the split treatment.

Continue reading Changes to mandatory judicial retirement ages: Virginia plan now law; Oregon voters will decide in November 2016 on repeal; Massachusetts proposal rejected

Changes to mandatory judicial retirement ages: Virginia plan may fall apart over what judges get the increase; Oregon Senate unanimously approves repeal; dead in Maryland; small change moving in North Carolina; debated in Massachusetts

Since last month’s update on the subject of mandatory judicial retirement age changes there’s been several developments. The biggest stumbling block: which judges should get the increase in the age?

Maryland

The Senate approved 47-0 a plan (SB 847) to increase the mandatory retirement age for judges from 70 to 73 (original bill called for 75) on March 24. The Senate plan would have applied to all judges after adoption of the amendment. The House, however, had various ideas on how this would impact current judges. The House Judiciary Committee approved amendment 172916/1 which would have allowed any judge that

reaches the age of seventy years before the date that the judge is eligible to be elected, appointed, or reappointed

to stay on to 73 or the end of their current term with the consent of the governor. A later floor amendment (393229/1) added the word “re-elected”

reaches the age of seventy years before the date that the judge is eligible to be elected, re-elected, appointed, or reappointed

The changes occurred on April 9, just days before the legislature adjourned sine die. As a result, the effort failed this year.

Massachusetts

The judges of Massachusetts only fell under the state’s mandatory judicial retirement age in the 1970s (Amendment LVII adopted in 1972)

[U]pon attaining seventy years of age said judges shall be retired.

Starting in 2009 there have been efforts to increase this age to 76. The first two attempts (HB 1640 of 2009/2010 & HB 1826 of 2011/2012) were approved by the Joint Committee on the Judiciary but proceeded no further. HB 68 of 2013/2014 saw rejection by the committee. The bill is now back up as HB 1609 of 2015/2016 and was heard before the Joint Committee on April 15.

North Carolina

The House approved 116-0 on March 25 a bill that would provide a minimal extension to the state’s judicial retirement age. Currently judges must retire on the last day of the month in which they reach 72. Under HB 50 as approved they may serve last day of the year they reach 72.

A counter proposal (HB 205) to extend this to the last day of the year they reach 75. Was approved by the House Judiciary IV committee on March 18 but has remained in locked up in the House Pensions and Retirement committee.

Oregon

On April 15 the Oregon Senate approved 30-0 a plan to eliminate the state’s mandatory retirement age or, to be more precise, repeal the state constitutional provision allowing the legislature to set such an age. SJR 4 would eliminate language from the state constitution that

[A] judge of any court shall retire from judicial office at the end of the calendar year in which he attains the age of 75 years. The Legislative Assembly or the people may by law: Fix a lesser age for mandatory retirement not earlier than the end of the calendar year in which the judge attains the age of 70 years.

The constitutional amendment is now pending on the House Speaker’s desk awaiting committee assignment.

Virginia

After 9 years of trying, a plan to increase the retirement age for at least some judges in Virginia passed the House and Senate, but the decision to increase for some judges and not others may result in a veto by the governor.

At issue under HB 1984 and SB 1196 was what judges should get the increase from 70 to 73. The House/Senate compromise approved provided that

  • all appellate judges effective July 1, 2015 would get the increase to 73
  • trial judges elected or appointed after July 1, 2015 would get the increase to 73
  • trial judges elected or appointed prior to July 1, 2015 would still have to retire at 70

The governor, however, issued a “recommendation” to eliminate the three-tired plan (Virginia governors can return a bill without a veto to the legislature “with recommendations for their amendment“). The Senate voted in favor of eliminating the three-tired plan 31-8. The House rejected it 27-63. Local media reports indicate the unamended bill will now go back to the Governor as early as today (Friday) for him to sign or veto.

Continue reading Changes to mandatory judicial retirement ages: Virginia plan may fall apart over what judges get the increase; Oregon Senate unanimously approves repeal; dead in Maryland; small change moving in North Carolina; debated in Massachusetts

Three states voted Tuesday on increases to mandatory judicial retirement: effort dies 49-21 in Arkansas House when 28 members fail to vote; amended versions advance in AL & MD

The efforts to increase mandatory judicial retirement ages have seen a great deal of activity in the last 24 hours.

  • Alabama’s House approved 64-35 with 1 abstention a plan to increase their age from 70 to 72 after members objected to the original proposed increase to 75. The Alabama provision is not a hard and fast retirement age; instead it addresses the maximum age a judge can be in order to be elected or appointed to a judgeship.
  • Maryland’s Senate Judicial Proceedings Committee effectively had the same idea as their Alabama House counterparts, reducing a planned increase in the mandatory judicial retirement age from 70 to 75 down to 73 instead. The amended plan passed on a 7-3 vote.
  • 28 Arkansas House members left the floor or failed to vote and 2 voted “present” when that state’s effort to increase the retirement age from 70 to 72 came up for a vote. As a result, despite receiving a 49 yes vs. 21 no vote, the bill failed under a provision of the Arkansas constitution that requires a majority of the entire body (51/100) to approve a bill.

Details of all increase efforts below the fold.

Continue reading Three states voted Tuesday on increases to mandatory judicial retirement: effort dies 49-21 in Arkansas House when 28 members fail to vote; amended versions advance in AL & MD

Alabama: Plan to let special commission reallocate judgeships reintroduced; no approval role for Supreme Court in this version

A modified version of a proposal first introduced in 2014 and discussed here to redistribute judges throughout Alabama has been reintroduced in the 2015 session.

SB 230 as filed last week would create a Judicial Resources Allocation Commission made up of 11 people

  • the Chief Justice (chair)
  • the governor’s legal advisor
  • 3 Circuit Judges picked by their association’s president
  • 3 District Judges picked by their association’s president
  • 3 attorneys picked by the state bar’s president

The Commission would conduct an annual review and rank each district or circuit on the need to increase or decrease judgeships based on 4 criteria

  1. A Judicial Weighted Caseload Study as adopted by the Supreme Court
  2. The population of the district or circuit
  3. The “judicial duties” in the district or circuit
  4. Any other information the commission deems relevant

That review and ranking list would be submitted to the legislature and the governor. The Commission would, however, be able to act without a specific law to change the judgeships. Where a vacancy occurred due to death, resignation, mandatory retirement, or similar case the Commission could unilaterally move the vacancy. The move would be limited in two ways

  1. The circuit/district that loses a judgeship cannot as a result drop to the bottom 10 on the ranking list
  2. Every county is entitled to at least one District Judge

This 2015 version differs markedly as compared to the 2014 version in that the Commission would be able to move the judgeship alone; the prior version as amended would have required approval by the state’s supreme court.

SB 230 has been filed in the Senate Judiciary Committee.

8 states continue to have partisan elections for their top courts; a look at legislative efforts to move to nonpartisan

With the expecting signing this week of a bill to transition West Virginia judicial races from partisan to nonpartisan, the number of states with partisan judicial races for their courts of last resort (usually called supreme court) will decrease down to 8. A look at those 8 and the efforts to move to nonpartisan races is below. Please note that in some cases alternative proposals, such as a move to merit/commission selection, have also been introduced and drawn much of the legislative focus and interest. This looks exclusively at the proposals to keep judicial elections but make them nonpartisan.

Continue reading 8 states continue to have partisan elections for their top courts; a look at legislative efforts to move to nonpartisan

22 bills to increase or eliminate mandatory judicial retirement ages: moving in IN, NJ, OR, PA, VA; killed in UT & WY

The wave of interest in increasing or eliminating the mandatory retirement ages for judges continues apace in the state legislatures. Of the seven states that have voted on these proposals:

  • 1 state (Virginia) has passed an increase and is awaiting action by the governor
  • 2 states (Indiana, Pennsylvania) have seen at least one chamber pass the proposal
  • 2 states (New Jersey, Oregon) have seen committee approval
  • 2 states (Utah and Wyoming) saw their efforts killed

Details below the fold.

Continue reading 22 bills to increase or eliminate mandatory judicial retirement ages: moving in IN, NJ, OR, PA, VA; killed in UT & WY

Arizona: new plan to stack supreme court introduced and clears committee in hours; over a dozen efforts to change supreme court composition in last decade

A plan to expand the Arizona Supreme Court from 5 to 7 members was added at the last minute to a bill in the House Judiciary Committee yesterday. HB 2076 as introduced had nothing to do with the state’s supreme court. An amendment to that bill however deleted the bill’s contents and replaced it with an expansion of the Supreme Court from 5 to 7 members. It was approved on a 4-2 party-line vote.

This isn’t the first time an effort with little to no notice has been made to expand the Arizona Supreme Court. In 2013 it was the Senate Judiciary Committee that tried to advance such a proposal that was ultimately rejected when the Chief Justice of the Supreme Court herself appeared in the committee and explained the Supreme Court was handling its case disposition time handily. The main sponsor countered that “I just thought that I might give the opportunity for two additional attorneys to sit on the supreme court.”

This marks over a dozen instances in the last several years of members of the legislature seeking to increase, or in some cases reduce, the size of their state supreme court/court of last resort. Details below the fold.

Continue reading Arizona: new plan to stack supreme court introduced and clears committee in hours; over a dozen efforts to change supreme court composition in last decade

Alabama Legislative Year in Review: judicial recusal for campaign contributions law

Law

HB 543 Provides rebuttable presumption of judicial recusal where party, attorney, or law firm in case gave certain percentage of all contributions to judge’s campaign: 10% for statewide appellate races, 15% for circuit court, 25% for district court.

SB 110 Repeals requirement that supreme court rules be published by Secretary of State in Acts of Alabama.

SB 113 Allows circuit and district courts to accept credit cards, charge cards, and debit cards for payment.

Adopted

SR 44 (only Senate approved required) Requests Supreme Court advisory opinion on constitutionality of 5 pieces of pending legislation.

 

Election 2014 winners and what they (could) mean for 2015 legislation

A look at the winners in last night’s election may help in predicting what will come out of the 2015 legislative sessions

Alabama Amendment 1 bans state courts from using international or foreign law. This is the 10th such ban in states, however the total number of efforts and their advancement in committee in the 2013 and 2014 sessions have diminished. It is unclear even if any similar bans are introduced whether they’ll make it out of committee in 2015.

Alabama Shelby County Local Amendment 1 requires the Judge of the Probate Court for the county must be an attorney. While similar bills have been proposed to require particular counties or all the judges in a state be attorneys (most states allow for at least some non-attorney judges) they often come to the problem that in many more rural counties there simply aren’t enough attorneys in the county to allow for such a requirement to work.

Arkansas Issue 3 provides (among other things) for the creation of salary commission to determine judicial and other salaries in the state. This commission stands alone among all others in the nation in that its determinations are not only binding (i.e. there is no need for additional legislative approval) they are unable to be overridden by the legislature as well. When similar proposals were introduced in Connecticut and New York, the legislatures balked at giving complete control over elected officials salaries without the legislature itself somehow being involved in either implementation/appropriation or even simply allowing them to override.

Hawaii Amendment 1 requires the state’s judicial selection commission release the names submitted to the governor or chief justice (for District Court seats) for selection to judicial office. Of the 18 states with such systems, now only 3 keep those names a secret after submission: Connecticut, South Dakota, and Vermont. It is unclear whether there will be any effort in these three states to move in Hawaii’s direction.

Nevada Question 1 authorizes the creation of intermediate appellate court (court of appeals). The implementing legislation has already previously been approved so the court will come into existence come January 1, 2015. The focus now turns to the 9 states without an intermediate appellate court, in particular West Virginia whose legislature has debated the creation of such a court for the better part of two decades.

New Mexico Amendment 3 now allows the legislature to set the deadline for judges to file paperwork seeking reelection as something other than the date for primary candidates. As I noted, New Mexico was the only state that required judges seeking retention to file so long prior to the date of election. Since this doesn’t apply to any other state, it isn’t clear this will have any impact in 2015.

Oregon Measure 87 now allows state judges to teach part time at public colleges/universities without running afoul of the state constitution’s no-dual-office or no-dual-salary provisions. Several other states have similar items, and there was a similar but not identical effort in Iowa several years ago (HB 2482 of 2010), but it isn’t clear if this approval will have an impact.

Tennessee Amendment 2 creates an appoint-confirm-retention election method for state’s appellate judges. This, coupled with a similar move away from merit selection/commission based appointments for the Kansas Court of Appeals in 2013 and pressure in other states to end these systems in favor of giving governors and legislators some/more/complete power with respect to judicial appointments is almost certain to reappear in the coming years.

Election 2014 Final Results: The winners and losers

The votes are in and the results from last night’s elections are below. Analysis of the results to follow later today.

Winners

  • Alabama Amendment 1 (72%): Prohibit state courts from using international or foreign law; prohibit state courts from giving full faith and credit to decisions from other states that reference international or foreign law
  • Alabama Shelby County Local Amendment 1 (79%): Judge of the Probate Court must be an attorney
  • Arkansas Issue 3 (53%): Creation of salary commission to determine judicial and other salaries
  • Hawaii Amendment 1 (82%): Require names submitted to governor for selection to judicial office be released
  • Nevada Question 1 (54%): Creation of intermediate appellate court (court of appeals)
  • New Mexico Amendment 3 (62%): Allow legislature to set deadline for judges to file paperwork seeking reelection
  • Oregon Measure 87 (57%) : Allow state judges to teach part time at public colleges/universities
  • Tennessee Amendment 2 (66%): Appoint-confirm-retention election method for state’s appellate judges

Losers

  • Florida Amendment 3 (48%): Allow governor to prospectively appoint judges to appellate courts — when the judge’s term is about to expire — before the vacancy occurs
  • Hawaii Amendment 3 (22%): Increase mandatory judicial retirement age from 70 to 80
  • Louisiana Amendment 5 (42%): Eliminate mandatory judicial retirement age